Saturday, 27 February 2010

Is your adjournment request "good"?

The folks responsible for the government's end of the Criminal Procedure Act have released a Best Practice Guide to the new procedures:

Summary case conferencing is now available at all metropolitan Magistrates’ Courts (except Melbourne where it will be introduced on 15 March) as well as Ballarat and Geelong. It is one of the new features of the Criminal Procedure Act 2009. Other significant features include the Notice to Appear and preliminary briefs.

The Best Practice Guide was commissioned by the Summary Procedure Steering Group which oversees the implementation and roll out of the changes. It aims to promote common understanding of the legislative framework and provide best practice advice. It is important for criminal law practitioners to appreciate the impact that the changes may have on their practice.

It's hardly comprehensive, but offers the most detail so far of what the powers-that-be have in mind for the summary process. One of the key points seems to be an expectation that the Magistrates' Court will refuse many adjournment applications which would previously have been granted as a matter of course (at page 7):

The Good Adjournment

In Notice to Appear cases a spare copy of the preliminary brief will be available at court on the return date. Therefore, a case can no longer be adjourned because the accused or their legal practitioner does not have a copy of the brief.

It also means that where a summary case conference could not be conducted before court, it can now be conducted at court on the return date. The idea that an accused is entitled to a couple of initial adjournments without question will be a thing of the past. The accused will no longer automatically obtain an adjournment at the counter.

Generally, adjournments should only occur to advance the progress of the case. Good adjournments will be for:

• a plea hearing

• to obtain further disclosure

• to obtain the full brief

• contest mention

• contested hearing.

The Magistrates' Court of Victoria Listing Protocols (updated in January) don't offer much more explanation of this, although they do seem to suggest that adjournments may be shorter than previously granted:

Listing Timeframes

The Court aims to list criminal cases in accordance with the following timeframes:

* Return Date to further mention hearing: 2-4 weeks

* Return Date/second mention hearing to plea: 2-4 weeks

* Return Date to contest mention hearing: 4-8 weeks

* Return Date to hearing (less than 1 Day with Case Conference, if appropriate) but no contest mention: 6-10 weeks

* From contest mention hearing to hearing: 10-14 weeks

The above timeframes do not apply to cases involving persons in custody.

Note: Return Date is the first date on which the proceeding is listed before the Court Proceedings may be adjourned at the discretion of the court. There is no right to an "automatic" adjournment on the first return of a case. One of the case management objectives of the court is to reduce delay.

None of these guidelines are referred to by the Act. How strictly they will be adhered to remains to be seen. It seems likely that, until funding issues for counsel are resolved, the new procedures may prove difficult to comply with.

JPs to stay

I posted last year about the potential abolition of Justices of the Peace.

The decision has been made to retain them, according to a press release from the Attorney-General last week. During the consultative round the submissions received were overwhelmingly opposed to scrapping the role (perhaps not surprising, given that 97% of submissions were from JPs themselves).

Planned changes include making appointments five years in duration rather than the present lifetime appointments, and introducing a code of conduct to deter abuses of the position.

(Incidentally, this might be a good moment to mention that we'll do what we can to keep past posts up-to-date, but as the list of previous posts grows it will get harder and harder to maintain their currency.

When you come across information on our site that has gone the way of the dodo, please feel free to drop us a line or post a comment. We'd appreciate it.)

Friday, 26 February 2010

A fool for a client ...

Whatever the general rule of puttage might be (see The recent history of Browne v Dunn, above), a specific prohibition on the accused giving (or adducing) evidence now exists at s 358 of the Criminal Procedure Act 2009.

Division 4 of Part 8.2 of the Act prohibits an unrepresented accused from personally cross-examining a protected person in the hearing of a sexual or family violence offence. It provides the Court with the ability to direct Legal Aid to act on the accused's behalf (they would anyway) and to provide directions to juries that no adverse inference should be drawn from the fact that a lawyer conducted the cross-examination.

Refusal of such assistance will have severe consequences. You can lead a horse to water without necessarily being able to get them to drink. Where an accused refuses the representation offered, s 357(5) provides,

(5) If the accused refuses the legal representation provided under subsection (3), or otherwise refuses to co-operate, the court must warn the accused that the accused will not be permitted to adduce evidence in relation to a fact in issue in order to contradict the evidence of a protected witness unless the evidence on which the accused intends to rely has been put to the protected witness during cross-examination.

This sub-section is then enforced by s 356.

Thursday, 25 February 2010

Victim Impact Statements

Retiring Justice Philip Cummins' comments about sentencing during his farewell sitting on Tuesday have caused some attention, particularly his appraisal that courts had "fallen short on sentence" in cases involving sex offences, violence, and especially domestic violence.

In October last year the Victims Support Agency released a review on the use and effectiveness of Victim Impact Statements.

It won't surprise anyone regularly appearing in summary courts that magistrates said they frequently find victim impact statements really helpful — especially for crimes of physical violence — and want them more often.

(But...the Courts jealously protect their role of determining appropriate punishment. While they want to know the effect of the crime on the victim, they don't put as much store in the victim's attitude to the appropriate sentence: R v Skura [2004] VSCA 53 at [438]; R v Sa [2004] VSCA 182 at [33] - [44].)

The latest Criminal Law Journal Volume 34 contains an article by Kate Warner critiquing the SA government's proposals to grant victims a greater say in the sentencing process. Professor Warner legitimately points out the dangers of involving victims. Reading them, I was reminded of Justice Frank Vincent's observations about the victim's role in DPP v DJK [2003] VSCA 203 [at 17 and 18]:

With respect to those statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.

This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.

Most of us recognise the symbolism at play in the legal system; but our familiarity with it means sometimes we become inured to it. But victims can find it restorative when the organs of state — our courts — say something like, "We acknowledge you were wronged. We can't take back that wrong, but in our sentencing we do the best we can to put it right."

The Court of Appeal commented on the power of the law's rituals and symbolism in DPP v Scott (2003) 6 VR 217 at [4] and [7] – [8]. Phillips CJ suggested that too many sentencing proceedings give the appearance that the interests of victims and their loved ones aren't sufficiently addressed. With the approval of the whole Court, he suggested a sentencing scheme where:

  1. The Court may formally declare that any person who suffered injury, loss or damage from the offence, is a victim in the proceeding, and note that in the Court's records. His Honour said, "This would do much to assure victims that the criminal justice system really cares about what happened to them and the results of it."
  2. At a guilty plea, the prosecutor is required to open the facts of the offence to the judge, even if the judge indicates they've “read the papers”.
  3. If victims want, during the proceeding, either the prosecutor or judge may read aloud appropriate and admissible parts of the victim impact statement.
I can only really comment on summary courts to say this approach doesn't seem to feature much in sentencing hearings. Largely because of the dearth of impact statements, but also because there doesn't seem to be any systems-approach to announcing who the victims are and recording the effect of the crime on them. (But I frequently see individual magistrates orally refer to the effect of crime on victims.)

Perhaps we might see this change if more victim impact statements are provided to sentencers?

Wednesday, 24 February 2010

Infringements amnesty

Edit: Note that this post refers to an amnesty that occurred in 2010. I don't know what the current situation is.

A fee waiver scheme is currently on to encourage people to pay their outstanding fines.

The government amnesty runs until March 19. For those who enter into arrangements to pay their outstanding fines, some of the fees and charges that have been attached since the issue of the original notice was issued will be waived.

The fines website advises that the lodgement fee ($45.60), enforcement order costs ($24.50) and the warrant issue fee ($51.40) will typically be waived. The cost of a penalty reminder notice will not be waived.

Not all agencies who issue fines are participating in the amnesty. Here's a list of those who are.

The government have flagged that a 'get tough' campaign is intended to follow the fee waiver period. Sanctions include licence and registration suspension, wheel clamping and property seizure.

This carrot-and-stick approach will create extra work for the Magistrates' Court. While paying a ticket has benefits for an accused, it's not the right option for everyone. Some people who have had fines issued to them are better off going before a magistrate and asking them to reverse the finding of the Infringments Court, and either contesting or pleading guilty to the offence alleged.

This free handbook from VLA can be helpful when trying to explain to people what their options are: A Workers Guide to Fines.

Stealing land

All property, including money and all other property real or personal including
things in action and other intangible property, is capable of being stolen: s 71(1) Crimes Act.

A statutory exception to this general rule is found at s 73(6), where it is provided that (except in some specified instances) land cannot be stolen. Where a title to land has been acquired by fraud, the prosecution are likely to prefer some form of deception charge.

The same principle probably doesn't apply in Singapore where, according to a recent article in The Age, the beaches of neighbouring countries are being 'stolen' and brought into Singapore for use in the island nation's building projects.

According to the article, Singapore has increased in size by 20% since the 1960s as a result of the importation of sand.

Monday, 22 February 2010

R v Dang & Dang: the harm that drugs may cause

Pidoto v O'Dea (2006) 14 VR 269 established that the type of drug of dependence involved is an irrelevant consideration in sentencing. It's not possible to classify one substance in that category as being more or less 'harmful' than another.

The same point went to the High Court in R v Adams in 2008. In the decision (of five justices, just 18 paragraphs long) it was confirmed that trying to work out whether ecstasy, cannabis, amphetamine, cocaine or any other drug of dependence was more or less harmful than any of the others would require a sentencing court to embark on an analysis of social research that it would simply not be practical or efficient (if at all possible) to do.

Gleeson CJ, Hayne, Crennan and Keiffel JJ [at 9]:
The appellant's entire argument is based on the factual assertion that "MDMA ... is less harmful to users and to society than heroin." The quantities in contemplation for the purposes of that comparison are unspecified. How much MDMA is being compared with how much heroin? Other aspects of the meaning of the proposition are equally unclear. Harm to users and society is a protean concept. Counsel had understandable difficulty explaining exactly what the proposition means, let alone demonstrating, by evidence available to the sentencing judge or matters of which a court could take judicial notice, that it was true. What kinds of user, and what kinds of harm to society, are under consideration? The social evils of trading in illicit drugs extend far beyond the physical consequences to individual consumers. As the Victorian Court of Appeal pointed out in R v Pidoto and O'Dea [6],
questions arise as to whether the perniciousness of a substance is to be assessed by reference to the potential consequences of its ingestion for the user, or its effect upon the user's behaviour and social interactions, or the overall social and economic costs to the community.

Furthermore, in relation to some of these matters, scientific knowledge changes, and opinions differ, over time. Generalisations which seek to differentiate between the evils of the illegal trade in heroin and MDMA are to be approached with caution, and in the present case are not sustained by evidence, or material of which judicial notice can be taken.

In Ming Tam Dang v R, the appellant set out as a ground of his appeal that the sentencing judge had impermissibly made such an assessment of the harmfulness of heroin and cannabis, falling into error.

The Court of Appeal affirmed the correctness of Pidoto v O'Dea (unsurprisingly, given that the earlier case was the 4:1 decision of five judges) and traced its later acceptance in Victorian law in R v D'Aloia, R v Karafilowski, R v Yacoub and DPP v McInness.

Bongiorno JA quoted R v Ferguson where a differently-composed Court of Appeal had said [at 399],
In R v Pidoto and O’Dea it was held that a sentencing judge erred if he or she imposed his or her own individual assessment of the perniciousness of the drug in question. Nothing said by the Court in Pidoto was, however, directed at remarks of a general character about the harm caused by trafficking in a drug of dependence.

Bongiorno JA continued [at 36]:
In the instant case, although the sentencing judge imposed a considerably lesser sentence upon Minh Tam Dang for cultivating cannabis than she did for trafficking heroin, she did not inappropriately compare the harm caused by one with the harm caused by the other. Her comments, quoted above, were of a general nature, not unlike those of the sentencing judge in Ferguson or of this Court in McInnes. She said that she must accord considerable weight to general deterrence for the crime of trafficking in heroin. She called it the ‘primary consideration’ in such sentencing. Her comments as to the effects of heroin and her references to the prisoners in this case being a ‘mother and a father of three young girls who would know the misery caused to other parents whose children had taken heroin’ were general comments in relation to this drug which did not offend the principle in Pidoto.

The appeal was dismissed.

It's wrong for a sentencing court to sentence because of a perception that a particular drug trafficked or possessed is more or less harmful than others in the category of drugs of dependence. But practitioners should not ordinarily take objection to sentencing remarks of a general nature about the harm that drugs may do.

Friday, 19 February 2010

UK's Legal Services Commission advocates checked for quality

Last year I wrote about the UK's Crown Prosecuting Service and a review into the competency of CPS advocates.

This year, the Legal Services Commission — the Poms' equivalent to our legal aid — is running a pilot scheme trialling a quality assurance scheme for advocates.

The discussion paper discusses what the LSC wants to do and how it reckons it will assess advocates. It says a way of assessing advocacy is needed because, "[T]here remain advocates at all levels who appear in cases (from the simplest to the most complex) that are beyond their competence." (See 1.9.2 of the discussion paper.)

It proposes a system compatible with the CPS grading system, so advocates can easily move from prosecuting to defending agencies. (At least, in theory.)

The discussion paper isn't quite as good a read as the CPS study from last year (IMHO). And ironically for a paper about achieving good advocacy, it's full of management buzzwords and clich├ęs that Don Watson likes to pillory.

But at least the LSC is talking about assessing and improving advocacy standards. We still don't have quite the same thing here — though I'm pretty sure the Justice Department's 2006 Review of legal education report : pre-admission and continuing legal education delved into the idea of competency-based advocacy training, particular for barristers. (Has anyone got a link to an online copy of that report? It seems to have gone since the Department of Justice revamped its website.)

The most recent edition of The Bar's In Brief mentions Victoria Legal Aid is reviewing briefing practices to get the best bang for its buck, which is a start in that direction.

Given the way a lot of changes from the UK seem to pop up in our legal system around 5 to 10 years later, my tip is that we'll see more of these reviews locally in the near future.

Thursday, 18 February 2010

Judicial Registrars

Last year Elucubrator posted on the expansion of the powers of judicial registrars.

The full list of matters that they may deal with are contained at rule 4 of the Magistrates' Court (Judicial Registrars) Rules 2005.

The problem with that rule is that it contains a long list of section numbers, and references to many different Acts without shedding much light on what they refer to. I've made up my own list below, and I find it useful to refer to when I need a reminder of the powers JRs may exercise.

A judicial registrar may deal with, exercising any and all powers of the Court, in the following proceedings:

(a) in a civil proceeding, all orders including final orders with the consent of the parties (but not family violence and family law matters, however the Rules are silent on matters involving the Stalking Intervention Orders Act 2008);

(ab) an order to bring a prisoner before a Court under r 19(1) of the Corrections Regulations 1998;

(ac) proceedings under ss 5, 5 and 7 of the Instruments Act 1958, including the ability to set aside judgments but not to re-hear proceedings;

(ad) the ability to summons parties to and conduct oral examinations, and the ability to make, vary or discharge instalment orders under the Judgment Debt Recovery Act 1984;

(b) the inspection of property and making of orders resulting from the execution of a general search warrant under s 78 of the Magistrates' Court Act 1989 (though not the power to issue such a warrant);

(c) small claims arbitration under the Magistrates' Court Act 1989 if the amount sought is under $5000;

(ca) the power to issue, recall and endorse warrants (except search warrants) under Part 4 Division 3 of the Magistrates' Court Act 1989.

(cb) to grant a s 110 re-hearing in a civil proceedings and s 94 in criminal proceedings (but not to hear these re-hearings), and to grant adjournments in any matter as considered appropriate;

(d) a pre-hearing conference for a civil proceeding under s 107 of the Magistrates' Court Act 1989;

(e)(i) proceedings for infringement or lodgeable infringement offences, but not drink-driving offences and others under s 49 of the Road Safety Act 1986;

(e)(ii) proceedings under the Infringements Act 2006, but not specific offences under that Act which typically involve non-compliance by the person with requirements of that Act;

(f) proceedings under the Magistrates' Court Civil Procedure Rules 1999, except interpleders over $5000, the power to approve an offer of compromise by a minor or disabled party, the power to grant an injunction or to make preliminary orders in regard to property except the power to require production of the property for inspection.

(fa) to receive applications and renewals for licenses under the Private Agents Act 1966;

(g) applications for shortening of time, licence restoration, interlock removal, etc. under s 50(4) of the Road Safety Act 1986;

and added last year and amended as of 2 February 2010 (notice given in Government Gazette S 42 Tuesday 2 February 2010),

(3) all powers of the Court in relation to diversion under s 59 of the Criminal Procedure Act 2009.

Wednesday, 17 February 2010

Attempting crime

Defence practitioners have sometimes found all their efforts to cast doubt on the occurrence of an offence washed away in a contest by s 55 of the Magistrates' Court Act 1989. This provision allowed a Court, if not satisfied of the indictable offence charged, to find in the alternative an offence of attempting to commit that same indictable offence.

The provision has been reenacted in the new Criminal Procedure Act 2009, and is now tucked away in Division 8, at s 76.

Monday, 15 February 2010

R v Ververis & Ververis: incompetent cooks

The judgment of Maxwell P and Buchanan JA in R v Ververis & Ververis restates many familiar principles of sentencing. One that I was unaware of is that incompetent or flawed attempts to manufacture illicit drugs may be considered less serious than efforts with better prospects for success.

There's logic to it. Offences under s 71AA, 71AB or 71AC of the Drugs, Poisons & Controlled Substances Act 1981 can be charged as completed offences or as attempts. The definition of traffick at s 70 is wide: Giretti v R (1986) 24 A Crim R 112.

70. Definitions

traffick in relation to a drug of dependence includes-

(a) prepare a drug of dependence for trafficking;

(b) manufacture a drug of dependence; or

(c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence;

If a person engages in an attempt to manufacture a drug of dependence an offence is committed even if the chemicals or recipe that the accused relied upon were never capable of producing that drug, provided the accused is under the impression that they would. But on sentence, it's reasonable that attempts to manufacture drugs which are doomed to failure should be treated more leniently than those which will actually yield a drug of dependence.

Buchanan JA,

19 It was submitted that three years’ imprisonment on count 3 was itself manifestly excessive. According to the submission:

The maximum penalty for this offence is 10 years’ imprisonment. The appellant had no prior convictions for this type of offence. The photographic evidence led the sentencing judge to note the ‘ramshackle nature of the laboratory’. In addition, the sentencing judge accepted the submission that the ‘laboratory was certainly not the most professional operation and appears to be untidy and disorganised’.

20 Developing this last point, senior counsel for Christopher submitted that the prosecution had not proved – and could not have proved – that Christopher had the capability to achieve his admitted aim of manufacturing methylamphetamine. All the prosecution could show, it was said, was that Christopher ‘was keen to have a real go.’ In those circumstances, it was submitted, Christopher’s conduct in establishing a laboratory had to be viewed as less blameworthy than the same conduct engaged in by a person with proven capability as a methylamphetamine ‘cook’.

21 Circumstances may perhaps be imagined in which an offender could demonstrate his own incapability as a ‘cook’ so clearly that it might be said to mitigate the seriousness of his having had in his possession the requisite equipment and substances with intent to manufacture.

The Court emphasised that this mitigatory point is not easily proven,

But that would be a matter to be proved by the defence, on the balance of probabilities. In the present case, a submission along these lines was advanced on the plea but the judge pointed out – correctly – that the evidence showed that Christopher had successfully manufactured some methylamphetamine. The defence called no evidence to substantiate the ‘incapability’ argument, which was therefore properly rejected.

There are evidentiary hurdles in proving that a particular combination of chemicals or process would not create the desired effect. If the proposition is so obvious as to satisfy a court on the balance of probabilities, it's hard to accept that the accused would have the requisite intent to be guilty of the offence in the first place.

Sunday, 14 February 2010

Transitional evidence provisions

One of the most troubling questions for practioners about the Evidence Act 2008 late last year was whether it was going to apply retrospectively.

There were problems with either option. If the applicable law depended on when the alleged offence occurred (or perhaps the charge was filed), practitioners would have to prepare themselves for a contested hearing using one set of rules one week, another set the following week, and then back to the first set the week after. Not an easy proposition when there is only a second to decide whether to rise and make an objection or not.

On the other hand, if every matter heard after January 1 was determined using the new rules, a lot of evidence which was considered legitimate at the time of its collection or production would later be deemed inadmissible. If courts used their new statutory discretion to let it in anyway, it would set up precedents for the use of judicial discretion making the new law almost identical with the old.

Parliament settled on a compromise. Part 1 of Schedule 2 of the Evidence Act 2008 now includes transitional provisions that allows some evidence collected prior to January 1 to be admitted despite non-compliance with the new Act.

Here's an abridged summary of Schedule 2 Part 1:

1) Commencement day means January 1 2010.

2) All hearings commencing after January 1 2010 fall under the operation of the Evidence Act 2008, but actual hearings (not proceedings) that commenced prior to Jan 1 will continue to apply the old rules;

3) Disclosure order provisions under s 128A do not apply to orders made prior to 1 January 2010.

4) Summons and subpoena provisions do apply the new rules of Part 3.10 if the hearing they relate to takes place after 1 January 2010.

5) Sections 114 (exclusion of visual identification evidence) and 115 (exclusion of picture identification evidence) do not apply to identifications made prior to January 1 2010.

6) Sections 146 (evidence produced by computers) and 147 (evidence from business documents) do apply to documents produced prior to January 1 2010.

7) Sections 148 (judicial notice of attestations) and 149 (not necessary to provide further proof) do apply to attestations done before January 1 2010.

8) Division 2 of Part 4.2 (Matters of Official Public Record) applies to the sealing, signing and publication of documents prior to January 1 2010.

9) Agreed facts entered into under s 149AB(3) of the repealed Evidence Act 1958 remain effective under s 191(3)(a).

10) The requirements under s 139 for investigating officials to caution suspects or else be deemed to have acted improperly does not apply to situations occurring prior to January 1 2010.

There is a Part 2 to Schedule 2, but now that the full Act is in effect it's unlikely to have much work to do.

This transitional schedule was introduced by the Statute Law (Evidence Consequential Amendments) Act 2009, so doesn't appear in the original print of the Evidence Act 2008 (though it does appear in the reprint).

Thursday, 11 February 2010

Magistrate Barberio to go

Magistrate Raffaele Barberio announced to the Magistrates' Court at Moorabbin today that he would be resigning before April.

His lawyer, Peter Ward, told the court that Mr Barberio is quitting to protect the integrity of the Magistrates' Court of Victoria. He will be entering pleas of guilty to charges of assault and criminal damage over incidents that occurred outside his home in March and October of last year.

A sentencing hearing before a magistrate from interstate will take place on 7 April.

Wednesday, 10 February 2010

New magistrate arrives to mixed reception

Edit: Chief Magistrate Ian Gray has now been quoted as saying that Mr O'Callaghan will hear both civil and criminal matters, and is unlikely to be deployed away from hearing traffic-related cases.

The appointment of Victoria's newest magistrate, John O'Callaghan, has been criticised by some as inappropriate due to a drink-driving prior in 2003.

Mr O'Callaghan recorded a reading of .07%

The Age reports that Mr O'Callaghan will only hear civil cases. If this is so, his history may make him the envy of other, more senior magistrates who are obliged to tour the country circuits.

Tuesday, 9 February 2010

Reduction in infringements against children

I can't remember the last time that the amount of a fine went down. I'm not sure it's ever happened. There have been offences which have been phased out, of course, but because infringements are now linked to inflation they just keep going up and up.

Except these. From 1 Feb the fine for a child travelling on the public transport system without a valid ticket or otherwise mucking about has become $58, rather than the $172 it was before that. No real explanation for the reduction is given, but perhaps government have recognised that these kinds of fines just aren't being paid.

On a related topic, is anyone familiar with the Fare Enough program? The promotional material makes it seem as though it's been widely implemented, but I've never heard of it before.

It's apparently a short course run by Kangan Batman TAFE. It was brought in through the introduction of s 227A to the Transport Act 1983 in 2006. It seems the program does not offer the unconditional dismissal of matters which accompanies completion of the ropes program.

Is it an idea that fizzled? If the program is operating, it may offer an alternative for children who would otherwise go on to the long waiting lists to do a ropes course.

Monday, 8 February 2010

School days 2010

In the Road Rules - Victoria, school zones were defined and described at r 23. Under the Road Safety Road Rules 2009 school zones are gone but a similar rule has been inserted at r 317A,

317A Traffic control devices applying on school days

(1) If information on or with a traffic control device indicates that it applies on school days, it only applies—

(a) on a declared school day; or

(b) on any day indicated to be a school day by information on or with the traffic control device.


Rule 317 provides that information on or with a traffic control device may indicate the times, days or circumstances when it applies or does not apply.

* Example *

The following sign applies—

• on declared school days, but not on other days unless information on or with the sign indicates that it is a school day at that place; and

• at the times indicated on school days, but not at other times.

Note that a sign may have a different number on the sign—see rule 316(4) of these Rules.

(2) For the avoidance of doubt, subrule (1) does not limit or extend the effect of a traffic control device that does not have other information on or with that traffic control device.

* Example *

The following sign is not restricted to certain times or days and applies whenever it is displayed.

(3) In this rule—

declared school day means any day that falls within a period declared by the Corporation, by notice in the Government Gazette, to be a school days period for the purposes of this rule, and that is not one of the following—

(a) a Saturday or a Sunday; or

(b) a day appointed under the Public Holidays Act 1993 as a public holiday in the place in which the traffic control device is located.


Different schools have different terms. For this reason, a declared school days period may include days or weeks when many schools are open although some are closed. For the same reason, information on or with a traffic control device may indicate that it is a school day at that particular place even though the day is not in a declared school days period because most other schools are closed at that time or is a Saturday, Sunday or public holiday.


Traffic control device is defined in the dictionary.

The relevant gazette is Government Gazette S 396, published on 9 November of last year. It contains a table of the declared school days for 2010:

School Days Period 1 = 27 January 2010 to 26 March 2010

School Days Period 2 = 12 April 2010 to 25 June 2010

School Days Period 3 = 12 July 2010 to 17 September 2010

School Days Period 4 = 4 October 2010 to 17 December 2010

These days are school days unless there is local signage that says otherwise.

Sunday, 7 February 2010

God save the ... er, DPP

Late last year Attorney-General Rob Hulls announced that they would be dropping the reference to the Queen in all criminal prosecutions. Cases are now to be brought in the name of the Director of Public Prosecutions.

He's received legal advice that bringing indictments in the name of the DPP will have no constitutional effect. Similar changes have already occurred in Western Australia and Tasmania.

I suppose the biggest practical effect is that it is easier to identify whether a case was brought prior to 2010 without referring to its full citation, but harder to differentiate trials from summary appeals.

In the Magistrates' Court criminal prosecutions will continue to be brought in the name of the informant. AustLII have struggled with a consistent format for cases from the summary jurisdiction, probably due to the variety of sources they're getting the decisions from.

Friday, 5 February 2010

Compensating victims

The Department of Justice is reviewing the current system of compensation and restitution for victims of crime, and released a discussion paper canvassing the various options used in other jurisdictions and options that Victoria could adopt.

Submissions are invited until 22 February 2010.

Thursday, 4 February 2010

Notices to Appear

Notices to Appear are a new method for police and other authorised officials to require an accused person to appear before the Magistrates' Court.

They are an alternative to summons or bail procedures, and may be used for any summary offence or indictable offence triable summarily. The form of a Notice to Appear is set out at Form 7 of the Magistrates' Court Criminal Procedure Rules 2009.

Notices to Appear are dealt with in Division 2 of Part 2.3 of the Criminal Procedure Act 2009, ss 22 - 26. Although these provisions came into effect on 1 January 2010, courts and the police are using a staggered introduction of these new notices.

The proposed commencement dates for the rollout of the process across metropolitan Magistrates' Court locations are:

February – Heidelberg and Ballarat

May – Broadmeadows

June – Sunshine

July – Frankston

August – Melbourne and Neighbourhood Justice Centre

September – Dandenong

October – Moorabbin

December – Ringwood

VLA lawyer Paul Jansen is working with the Victoria Police on the roll-out of these new summary procedures. He's included a lot of useful information on the VLA website, including a two-page summary of how the new system is supposed to work.

Wednesday, 3 February 2010

JCV online test 2

The Judicial College of Victoria released the second part of their online evidence self-test yesterday.

There are ten questions to test your knowledge of relevance, opinion evidence and the discretions. Like the last part, you'll probably need to refer to the Evidence Act 2008 to complete it.

Good luck!

Legislation Watch: Random stop and search

The Summary Offences and Control of Weapons Acts Amendment Bill 2009 had a trouble-free passage through parliament.

On 10 November it had its First Reading in the lower house. Its Second Reading was moved two days later and was completed by the 26 November. It was introduced to the Legislative Council that same day, and was passed without amendment on 12 December. It received Royal Assent on 15 December and consequently was enacted a day later. The powers to randomly search were first exercised at Footscray on 7th January.

A very speedy birth for what is a remarkable piece of legislation. As pointed out at the Human Rights Portal that Elucubrator referred to last year, it is the first piece of legislation whose Statement of Compatibility provides that some of the provisions in it are not compatible with the Charter of Human Rights and Responsibilities Act 2006.

Amendments to the Summary Offences Act 1966 include the creation of a new offence of disorderly conduct, empowers the police to arrest and lodge in safe custody a person who is found drunk and disorderly in a public place, and expands the list of offences for which infringement notices can be issued. In the Statement of Compatability these are described as justifiable limitations on human rights.

Sections 10A - 10L permits the police to search anyone in a designated area. Failure to comply with a direction is an offence.

Section 10G provides,

10G. Power to search persons in designated area

(1) A member of the police force may, without a warrant, stop and search a
person, and search any thing in the possession of or under the control of the
person for weapons, if the person and, if applicable, the thing are in a
public place that is within a designated area.

(2) Schedule 1 applies to the search of a person or thing under this section.

(3) A member of the police force must conduct the least invasive search that
is practicable in the circumstances.

(4) A member of the police force may detain a person for so long as is
reasonably necessary to conduct a search under this section.

In the Statement of Compatability, Minister for Police and Emergency Services Bob Cameron said,

The government intends to proceed with this legislation notwithstanding the conclusion that it is incompatible with section 13(a) of the charter. There is considerable concern in the community about the pattern of weapons-related offending with which this legislation is concerned. I am unwilling to reduce further the operational scope of the legislative response to that threat. In particular, the government is very concerned that the carriage and use of weapons by people in public places should be prevented, or at the very least, deterred.

As I am entitled to do, I make this statement indicating that the legislation is partially incompatible with the charter to the extent that it provides powers for police to randomly search persons and vehicles in public places within the designated areas, even if the police have not formed a reasonable suspicion that the person or vehicle is carrying a weapon. The government intends to proceed with the legislation in its current form.


I have already determined that sections 10G and 10H of the Control of Weapons Act 1990 are incompatible with the charter in relation to section 13(a). Similarly, I have determined that they are incompatible with section 17(2).

However, the government believes this legislation is important for preventative and deterrent reasons, including the protection of children.


I consider that the majority of the bill is compatible with the charter because, to the extent that some provisions may limit human rights, those limitations are reasonable and demonstrably justified in a free and democratic society.

However, I consider that the bill is incompatible with the charter to the extent that it limits rights under sections 13(a) and 17(2) in providing powers for police to randomly search persons (including children) and vehicles in public places within designated areas, even if the police have not formed a reasonable suspicion that the person or vehicle is carrying a weapon. The government intends to proceed with the legislation in its current form as there is considerable concern in the community about the pattern of weapons-related offending with which this legislation is concerned.

The declaration poses a challenge for the judiciary, who will at some stage be called upon in the future to interpret the legislation. Does this prevent courts from trying to interpret the legislation consistently with human rights?

Tuesday, 2 February 2010

R v Rekhviashvili: separate packages of drugs

The first criminal case for the year has been handed down by the Court of Appeal.

R v Rekhviashvili considered the operation of provisions which allow different drugs (or different types or purities of the same drug) to be added together for the purposes of calculating traffickable quantities under s 70 of the Drugs, Poisons and Controlled Substances Act 1981.

Specifically, columns found in Part 3 of Schedule 11 of the Act create statutory large commercial quantities and commercial quantities of a drug where the drug has been mixed with another substance (a 'cutting agent').

The appeal originally stated a ground that the different packages and locations (within the same room) that the drugs had been found prevented them from being added together for these calculations. Counsel abandoned this argument, leaving the Court's comments on the subject dicta only.

Neave and Bongiorno JJA,

26 Further, although it is unnecessary to decide the question for the purposes of this case, we do not consider that the fact that the drugs were contained in separate plastic bags and foils would preclude the application of Part 3.

27 In our view the word ‘mixture’ in Part 3 of Schedule 11 is apt to describe the situation where a mixed substance containing the drug is found in a number of separate bags or other containers (as was the case here). If this were not the case the provisions dealing with a mixed substance could be avoided by the simple expedient of dividing the substance containing a drug of dependence into separate packages, the weight of each of which is less than a traffickable quantity. Such an approach could also exclude application of the mixture provision where the drug possessed by the offender is in several forms, for example in a liquid, as crystals and in tablets.

How far this reasoning stretches is unknown. Would it apply to, say, drugs which were found in a house but also to drugs found in a car on the same property? Possibly so.